Citation Nr: 9828253
Decision Date: 07/31/98 Archive Date: 09/28/98
DOCKET NO. 95-23 293 DATE
On appeal from the Department of Veterans Affairs Regional Office
in Waco, Texas
THE ISSUES
1. Entitlement to an increased evaluation for service-connected
anxiety reaction, currently rated as 10 percent disabling.
2. Entitlement to a total rating based on individual
unemployability due to service connected disabilities.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran had honorable active service from March 1943 to April
1946.
This matter comes before the Board of Veterans' Appeals (the Board)
on appeal from rating actions of the Department of Veterans Affairs
(VA) Waco, Texas, Regional Office (RO). In an August 1994 rating
decision, the RO denied the veteran's claims for a compensable
rating of his service-connected anxiety reaction, and for a total
rating based on individual unemployability due to service connected
disabilities. The veteran perfected an appeal of that decision.
In a June 1997 rating decision, the RO increased the rating
assigned for the anxiety reaction disorder from zero to 10 percent.
However, this is not the maximum assignable for the disorder. The
United States Court of Veterans Appeals (Court) has held that on a
claim for an original or an increased rating, the appellant will
generally be presumed to be seeking the maximum benefit allowed by
law or regulations, and it follows that such a claim remains in
controversy where less than the maximum benefit available is
awarded. See, AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court
further held that, where a claimant has filed a notice of
disagreement as to an RO decision assigning a particular rating, a
subsequent RO decision awarding a higher rating, but less than the
maximum available benefit, does not abrogate the appeal. Id.
Accordingly, that issue remains on appeal and is now ready for
further appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
With respect to his claim for an increased evaluation for his
service-connected anxiety reaction disorder, the veteran contends
that the symptomatology associated with that disorder has increased
in severity and that an increased evaluation is warranted. As to
his claim for a total rating based on individual unemployability
due to service connected disabilities, the veteran argues that he
is no longer able to hold gainful employment due to the terrible
shaking that he must endure.
He claims that he last worked in 1988, and the reason that he
stopped working was because of his inability to cope with the
stress due to his service-connected anxiety disorder.
Consequently, he simply retired and has not been able to work
since. In addition, the veteran argues that even though the
schedule of ratings does not provide him a 100 percent rating,
under the provisions of 38 C.F.R. 4.16(b) he should be assigned one
on an extraschedular basis since he is unable to secure and follow
a substantially gainful occupation by reason of his service-
connected disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1998), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that that the preponderance of the evidence is against the
claim for an evaluation in excess of 10 percent for an anxiety
reaction disorder, and is against the claim for a total rating
based on individual unemployability due to service connected
disability.
FINDINGS OF FACT
1. All relevant evidence necessary for the disposition of the
veteran's claims have been obtained by the RO.
2. The veteran's anxiety reaction disorder is manifested by mild
to moderate depression, some interference with sleep and feelings
of anxiety; it does not result in more than mild impairment of
social and industrial adaptability. Occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational tasks due
to such symptoms as depressed mood, anxiety, suspiciousness, panic
attacks, chronic sleep impairment, and mild memory loss, has not
been shown to result from the veteran's anxiety reaction disorder.
3. The veteran's only service-connected disorder is an anxiety
reaction disorder, evaluated as 10 percent disabling.
4. The veteran's service connected disability is not of
sufficient severity to preclude the veteran from engaging in all
types of substantially gainful employment, consistent with his
education and employment background.
5. There is no evidence of exceptional or unusual circumstances
that would render impractical the schedule for rating disabilities
or that would demonstrate that the veteran is unable to secure and
follow a substantially gainful occupation by reason of his service-
connected disability.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent for an
anxiety reaction disorder have not been met. 38 U.S.C.A. 1155, 5107
(West 1991); 38 C.F.R. 4.7, 4.10, 4.132, Diagnostic Code 9400
(1997); 4.130 (1997).
2. A total rating on the basis of individual unemployability due
to service-connected disability is not warranted. 38 U.S.C.A. 1155,
5107; 38 C.F.R. 3.321, 3.340, 3.341(a), and Part 4, 4.16 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, it is noted that the veteran's claims are well grounded
within the meaning of the statute and judicial construction. 38
U.S.C.A. 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 71,
81 (1990). Per Proscelle v. Derwinski, 2 Vet. App. 629 (1992),
claims for increased evaluations are well grounded if, as in the
instant case, the claimant has alleged that the service-connected
disability is worse than reflected by the rating assigned.
Therefore, it must be determined whether the VA has fulfilled its
duty to assist him pursuant to 38 U.S.C.A. 5107. The Board
concludes that it has. Specifically, the Board notes that the
overall record, including reports of recent VA examinations,
provide a complete basis upon which to address the merits of the
veteran's claims. As it stands, all necessary evidence for a fair
and impartial determination of his claims is of record. There is
no clear indication that there are pertinent additional outstanding
records which the VA has not attempted to obtain. Accordingly, no
further assistance to the veteran is required to comply with the
duty to assist him as mandated by 38 U.S.C.A. 5107(a) (West 1991).
Increased Rating for an Anxiety Reaction Disorder.
Laws and Regulations
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of earning
capacity. 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. Part 4. Separate
diagnostic codes identify the various disabilities. Service
connection is presently in effect for an anxiety reaction disorder,
which has been assigned a 10 percent disability evaluation.
The schedular criteria for evaluation of psychiatric disabilities
were changed effective November 7, 1996. Where a law or regulation
changes after a claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded, the
version most favorable to an appellant applies unless Congress
provided otherwise or permitted the Secretary to do otherwise and
the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996);
Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, the veterans
psychiatric disorder must be evaluated under both the old and the
new rating criteria to determine which version is most favorable to
the veteran.
In accordance with 38 C.F.R. 4.130, Diagnostic Code 9400, A 10
percent disability evaluation was assigned under the old criteria
for an anxiety reaction disorder where there was evidence of
emotional tension or other evidence of anxiety productive of mild
social and industrial impairment. A 30 percent evaluation under
the old criteria was assigned where there was definite impairment
of social and industrial adaptability. A 50 percent evaluation for
an anxiety reaction disorder was assigned upon a showing of
considerable impairment of social and industrial adaptability. A
70 percent evaluation was warranted for severe impairment of social
and industrial adaptability.
In Hood v. Brown, 4 Vet. App. 301 (1993), the Court of Veterans
Appeals (Court) stated that the term "definite" in 38 C.F.R. 4.132
was "qualitative" in character, and invited the Board to "construe"
the term "definite" in a manner that would quantify the degree of
impairment for purposes of meeting the statutory requirement that
the Board articulate "reasons for bases" for its decision. 38
U.S.C.A. 7104(d)(1) (West 1991).
In a precedent opinion, dated November 9, 1993, the General Counsel
of the Department of Veterans Affairs (VA) concluded that
"definite" is to be construed as "distinct, unambiguous, and
moderately large in degree." It represents a degree of social and
industrial inadaptability that is "more than moderate but less than
rather large." The VA, including the Board, is bound by such
interpretations. 38 U.S.C.A. 7104(c) (West 1991).
The revised rating criteria contemplates that a 10 percent
evaluation is warranted where there is occupational and social
impairment due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only during
periods of significant stress, or; symptoms controlled by
continuous medication.
A 30 percent evaluation is to be assigned for occupational and
social impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational tasks
(although generally functioning satisfactorily, with routine
behavior, self-care, and conversation normal), due to such symptoms
as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly
or less often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).
A 50 percent evaluation is to be assigned for occupational and
social impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial, circumlocutory,
or stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of short-
and long-term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired judgment;
impaired abstract thinking; disturbances of motivation and mood;
difficulty in establishing and maintaining effective work and
social relationships.
A 70 percent evaluation is assigned for occupational and social
impairment, with deficiencies in most areas, such as work, school,
family relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere with
routine activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability with
periods of violence); spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike setting); inability to
establish and maintain effective relationships).
Factual Background
Service medical records reveal that the veteran was hospitalized in
March 1946 with a history of having become very nervous for a
period of 24 hours in the summer of 1944, precipitated by a close
explosion during routine basic training. He was reportedly normal
for one year thereafter, and then in 1945 he became nervous,
developed a tremor, his face became flushed, he had shortness of
breath upon moderate exertion, and occasional palpitation. Prior
to admission, hyperthyroidism was suspected based upon 21 pounds of
weight loss in the prior year. Following a period of
hospitalization that included various studies, the final diagnosis
was psychogenic cardiovascular reaction, neurocirculatory asthenia.
Physical examination on March 31, 1946, just prior to the veteran's
separation from service, yielded a diagnosis of anxiety reaction,
mild, characterized by periods of headaches, tremulousness, poor
appetite and fatigue.
In April 1946, the veteran filed a claim for service connection for
nervousness. Service connection for psychoneurosis, anxiety state,
was granted by an April 1946 rating decision and assigned a 10
percent disability evaluation from April 2, 1946.
A June 1952 VA special neuropsychiatric examination resulted in a
diagnosis of "anxiety reaction, chronic, mild, manifested by mild
tremor and hyperhidrosis, subjective tension, easily excited and
becomes tremulous."
Based upon the results of that examination, in a July 1952 rating
decision, the disability evaluation of the veteran's psychiatric
disorder, characterized as "anxiety state, mild," was reduced to
zero percent. In August 1952, however, the veteran presented a
Certificate of Attending Physician, wherein the physician's
impression was "Anxiety state, moderately severe symptomatic.
Emotional instability." Based upon that evidence, the disability
evaluation of the veteran's psychiatric disorder, characterized as
an anxiety reaction, moderate, was restored to a 10 percent rating.
In March 1956, the veteran underwent another VA neuropsychiatric
examination. Following examination, the diagnosis was an anxiety
reaction, chronic, moderately severe. The examiner noted, however,
that there was no evidence of inadaptability economically, nor an
indication for specific therapy. Based upon the results of that
examination, the evaluation of the veteran's psychiatric disorder
was reduced to zero percent disabling in an April 1956 rating
decision.
In 1989, the veteran presented a private medical record that noted
a history of nervousness with hypertension and a pertinent
diagnosis of severe nervousness. Upon consideration of that
evidence, an August 1989 rating decision continued the zero percent
evaluation for the veteran's service-connected anxiety reaction.
In September 1990, the veteran was seen by a private neurologist
with a chief complaint of "Tremor." Following examination, the
impression was that the veteran had tremor of the hand that
increased when he used his hands. The examiner thought that the
veteran most likely has essential tremor, and that Parkinson's
disease was very unlikely. The veteran continued to be seen by his
private family physician for various disorders through 1993,
including osteoarthritis, acute cardiovascular disease,
hypertension and Parkinsonism.
In August 1993, the veteran filed the claim of entitlement to an
increased rating for his service-connected psychiatric disorder
that has resulted in the current appeal. In conjunction with that
claim, he presented private medical records for the period between
1990 and 1993 documenting diagnosis and treatment of the veteran
for various disorders, including an essential tremor, rule/out
Parkinson's, hypertension, acute cardiovascular disease, and
Parkinsonism.
In May 1994, the veteran underwent private neurological
consultation with a history of tremor. Following examination, the
examiner's impression was "Seventy year old with essential tremor.
At this point, there is really no significant evidence of
Parkinson's disease."
In September 1995, the veteran underwent VA psychiatric examination
for the purpose of the evaluation of his service-connected
psychiatric disorder. It was noted, by history, that the veteran
had been granted a 10 percent service-connected disability rating
based upon his anxiety feelings, but in 1958, this was terminated
based upon the observation that he had improved. In terms of the
reason for the examination, the veteran felt that his old symptoms
were returning. It was further noted, by history, that the veteran
was discharged from the service on medical grounds, feeling very
nervous at the time of discharge. It was noted that the veteran
had finished high school, and worked as a foreman throughout his
life on the family farm. The veteran had last worked in 1988, and
since that time he did only menial type of work, mostly gardening
and just "fiddling around." The veteran was noted to be a married
man with two adult children. He would take care of the
grandchildren sometimes. As time went by, the veteran began
experiencing shaking, some mild resting tremor and considerable
intentional tremor so much that his hands became quite
uncoordinated to the point where it is very difficult for him to
carry out any skilled movements because of the shaking condition.
A history of high blood pressure, controlled by medication, was
noted. The veteran's medications were also reviewed with respect
to their relationship to the veteran's resting and intention
tremor. The examining physician indicated that the tremors were
not part of the examination, but it was noted that "the moving
tremor sometimes responds to Inderal at least it may alleviate it,
and [the veteran's] resting tremor is probably a Parkinsonian
condition which again may respond to anti-Parkinsonian
medications." The veteran "otherwise denied any other psychiatric
condition." He had no psychiatric hospitalizations or treatment.
He did state that his shaking condition was bothering him and
making him very nervous. The veteran denied any smoking, drinking
or illegal drugs. He also denied any problems with the law.
Upon mental status examination, it was noted that the veteran
showed general normalities. He was well oriented; he understood
abstract reasoning; his memory function was good at recalling all
three objects given to him after about 4 to 5 minutes of
diversified conversations. The veteran could explain small
proverbs. He was noted to have some obvious hearing difficulties,
although according to the examiner, the veteran "clearly showed no
signs of organic brain syndrome and he was passing a normal mental
status examination." With respect to his anxieties, the veteran did
not deny that he feels a great deal of frustration about his
incoordination and shaking condition. The examiner summarized that
the veteran probably has an arteriosclerotic condition and his
Parkinsonian condition has probably an arteriosclerotic basis. It
was noted that the veteran's incoordination and shaking on movement
probably has basal ganglia disease which is probably again based on
some arteriosclerotic condition.
The examiner's diagnostic impressions were: 1) Normal mental status
examination, no organicity found. 2) Probably Parkinson's disease
and arteriosclerotic degenerative condition of the basal ganglia.
This should be confirmed with further neurological investigation.
The examiner commented that
it is really difficult to related the veteran's current feeling of
frustration and anxiety to his early anxiety condition for which he
once had a 10 percent disability. Even giving all the benefits of
the doubt, we have difficulty seeing his current feeling of
frustration as his origin, now service-connected anxiety feeling.
The veteran is competent for VA purposes.
In March 1997, the veteran underwent another VA psychiatric
examination that was conducted by the same psychiatrist who had
conducted the 1995 examination. In conjunction with that
examination, the veteran's service history was briefly reviewed.
It was noted that the veteran had developed anxiety disorder and
had been hospitalized for about a six week duration prior to his
discharge in 1946. The veteran was noted to have completed a high
school education, and had worked on the farms and in warehouses
until his retirement in 1988. The veteran was noted to have been
married only once and to still be a married man with two grown
children. The veteran was noted to take antihypertensive
medication, and some medication for his Parkinson's disease. The
veteran was also noted to have had some neurological testing for
his tremor. Although a CAT scan was normal, his Doppler test of
his carotid arteries showed bilateral block formation in, several
places. The veteran stated that he started to have a tremor
already in 1946 at the time of his discharge. The veteran was
reported to currently have two kinds of tremors, a resting tremor
characteristic to Parkinson's disease, and a intention tremor that
is quite separate from the Parkinsonian tremor. It was noted that
both originate from the basal ganglia, but from different places.
It was also noted that the anti-Parkinsonian medication is
ineffective, but that was no surprise to the examiner "because we
know from neurological practice that these anti-Parkinsonian drugs
are loosing the effectiveness after about five years."
Upon psychiatric examination, it was noted that as soon as the
veteran sat down in the office, his tremors became immediately
operant, both the resting and intention tremor. The examiner
recalled that the 1995 VA psychiatric examination had resulted in
a normal mental status examination, but indicated that since that
time the veteran had apparently become depressed. The veteran
complained about depressive feelings over the strong tremors and
the frustration over the fact that he had to stop working 10 years
prior. The veteran was described as otherwise well oriented with
his attention directed to the examiner. The veteran was also
described as tense, and complained of occasional periods of anxiety
feelings, but the examiner noted that the main emotional problem
with the veteran was depression. The veteran reported a terminal
type of insomnia and stated that he had lately started having
crying episodes. The examiner indicated that the veteran was on
the verge of tears during the examination for a few minutes twice
during the examination. The veteran's cognitive functions were
described as being within acceptable normal limits. He recalled
all three objects given to him to memorize. The veteran had
tangential, but still acceptable interpretation of proverbs. The
veteran could do very simple calculations. The examiner concluded
that from the cognitive standpoint, pathology could not be found,
but contrary to the previous examination, the veteran was obviously
depressed.
The examiner's diagnostic impression was: 1) Major depression, mild
to moderate, not under treatment; 2) Parkinson's disease; and 3)
Intention tremor.
In discussion, the examiner noted that the veteran had stated that
he started to have tremor already in 1946, right at the time of his
discharge. The examiner opined that "it was very doubtful that
this was a Parkinsonian type of tremor although the veteran thinks
that his current tremor originated from that point." The examiner
went on to state.that we know from the history that the veteran had
a serious anxiety condition, since he had six weeks of
hospitalization. The examiner then stated that "we only theorize
that this tremor was associated with anxieties, but on a
neurological basis, I very much doubt that [the veteran] had
already Parkinson's disease at that young age. So, the veteran's
current tremors probably are of later origin."
In a June 1997 rating determination, the RO granted a 10 percent
disability evaluation for the veteran's service-connected anxiety
disorder. It was explained that the increase was essentially based
upon a resolution of reasonable doubt in the favor of the veteran
in the interpretation of the findings of the March 1997 VA
examination that the veteran had mild to moderate major depression.
At his hearing before the undersigned in May 1997, the veteran
testified that he lives with his spouse with whom he has been
married for 47 years; that his usual day consisted of taking his
grandchildren to school, lying around, working in the yard, and
doing some fishing in order to relieve some of the tension that he
feels. He indicated that he had problems staying focused on any
one thing; that he becomes angry for no apparent reasons at least
once a day; that he has periods of crying spells for no apparent
reason; that he avoids crowds such that his social activities are
limited to going to church and fishing with a couple of real good
friends; that he takes two daily medications to help out with his
anxiety; that he last worked in 1988 as a warehouse supervisor
until his retirement; that he had a lot of arguments with his crew
and other supervisors, and that he retired in order to avoid the
confrontations and the stress of work.
Analysis
Initially, the Board notes that although a normal VA mental status
examination was conducted in 1995, the more recent 1997 VA
psychiatric examination resulted in a diagnosis of mild to moderate
major depression. Further, occasional periods of anxiety feelings
and some sleep disturbance were noted. Since these psychiatric
manifestations were loosely associated with the veteran's service-
connected anxiety disorder, the RO offered the veteran the benefit
of the doubt and took them into consideration and granted a
disability evaluation of 10 percent for the anxiety reaction. The
Board must concur with that finding and hold that evaluation to be
warranted under both the old and new criteria for the evaluation of
psychiatric disorders.
The Board is also of the opinion, however, that an evaluation in
excess of 10 percent is not warranted for. the service-connected
anxiety reaction disorder. At the time of both his September 1995
and March 1997 VA examinations, the veteran indicated that he
continued to live with his family. It is noteworthy that he has
been in a marital relationship with the same person for 47 years,
and appears to not only have a good relationship with his spouse,
but with his children and grandchildren as well. The veteran has
also testified that he has at least two very close friends with
whom he fishes. He also indicated that he attends church on a
regular basis. Upon both VA psychiatric examinations, there was no
evidence of psychosis, hallucinations or delusions; the veteran was
described as well oriented. Moreover, he understood abstract
reasoning, and his memory function and cognition were intact. The
veteran has not been hospitalized since service for his anxiety
disorder. Significantly, there is no competent evidence
demonstrating that the veteran receives ongoing treatment for his
service-connected psychiatric disorder.
Although the veteran has indicated that he receives medication for
his anxiety, as a lay person he is not competent to offer medical
evidence to that effect. The medical record demonstrates instead
that the veteran's medications are, in fact, given to him for his
non service-connected disabilities.
In terms of impact upon his occupational ability, the veteran has
complained most particularly about the "terrible shakes" that he
has had to endure. It is important to note that the veteran has
multiple and very serious nonservice-connected disorders that
contribute to his occupational and social impairment and his
inability to perform occupational tasks. Some of these have been
variously diagnosed as intention tremor, Parkinsonism,
arteriosclerotic degenerative condition of the basal ganglia, and
Parkinson's disease. Significantly, the veteran's tremors have
been associated with these other disorders and have not been
associated with his service-connected anxiety disorder. In fact,
the only opinion on the matter, given by the VA psychiatrist who
examined the veteran in 1995 and 1997, are that the veteran's
current tremors are not associated with the veteran's service-
connected anxiety disorder but are of a later origin. In that
regard, it is an important distinction to note that although the
veteran has been unemployed for 10 years, it appears more likely
that his occupational and social impairment and/or inability to
perform occupational tasks is the result of his age and the serious
impact of his multiple nonservice-connected disabilities, including
his tremors, and not because of his service-connected anxiety
reaction disorder.
As occasional decrease in work efficiency and intermittent periods
of inability to perform occupational tasks due to such symptoms as
a depressed mood, anxiety, suspiciousness, panic attacks, chronic
sleep impairment, mild memory loss has not been demonstrated to
result from the veteran's anxiety reaction disorder, and as the
veteran was found to have no more than mild to moderate depression
implicitly resulting from that disorder at the time of his 1997 VA
psychiatric examination or at any other time, an evaluation in
excess of 10 percent for the service-connected anxiety reaction
disorder is not warranted. 38 U.S.C.A. 1155, 5107; 38 C.F.R. 4.7,
4.10, 4.132, Diagnostic Code 9400 (1996); 4.130.
Finally, although the veteran has argued otherwise, there is no
indication in the record that the schedular evaluation is
inadequate to evaluate the impairment of the veteran's earning
capacity due to the disability at issue, and it does not present
such an exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent periods
of hospitalization as to render impractical the application of the
regular schedule of standards. Thus, the provisions of 38 C.F.R.
3.321 relating to extraschedular evaluations are not applicable
here. The Board has also considered all other potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not
they have been raised by the veteran or his representative, as
required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
Total Rating
Pertinent regulations provide that total disability may be
assigned, where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency, unable to
secure or follow a substantially gainful occupation as a result of
service-connected disability, provided that, in pertinent part, if
there is only one such disability, the disability shall be rated at
60 percent or more, and that, if there are two.or more
disabilities, there shall be at least one disability rated 40
percent or more, and sufficient additional disability to bring the
combined rating to 70 percent or more. 38 C.F.R. 3.340, 3.341(a),
4.16(a). The regulations further provide that the existence or
degree of non-service-connected disabilities or previous
unemployability will be disregarded where the aforementioned
percentages for the service-connected disabilities are met and
where, in the judgment of the rating agency, the service-connected
disabilities render the veteran unemployable. Id.
VA will grant a total rating for compensation purposes based on
unemployability when the evidence shows that the veteran is
precluded from obtaining or maintaining any gainful employment
consistent with his education and occupational experience, by
reason of his service-connected disabilities. 38 C.F.R. 3.340,
3.341, 4.16. For a veteran to prevail on a total rating claim, the
record must reflect some factor which takes the claimant's case
outside the norm of such veteran. See Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993); 38 C.F.R. 4.1, 4.15 (1997). The sole fact
that a claimant is unemployed or has difficulty obtaining
employment is not enough. A high rating in itself is a recognition
that the impairment makes it difficult to obtain and keep
employment. The question is whether the veteran is capable of
performing the physical and mental acts required by employment, not
whether the veteran can find employment. See Van Hoose, 4 Vet.
App. at 363; 38 C.F.R. 4.16(a). In determining whether an appellant
is entitled to a total disability rating based upon individual
unemployability, neither an appellant's non-service-connected
disabilities nor advancing age may be considered. Van Hoose, 4
Vet. App. at 363.
In a pertinent precedent decision, the VA General Counsel concluded
that the controlling VA regulations generally provide that veterans
who, in light of their individual circumstances, but without regard
to age, are unable to secure and follow a substantially gainful
occupation as a result of service-connected disability shall be
rated totally disabled, without regard to whether an average person
would be rendered unemployable by the circumstances. Thus, the
criteria include a subjective standard. It was also determined
that "unemployability" is synonymous with inability to secure and
follow a substantially gainful occupation. VA O.G.C. Prec. Op.
No. 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992); See also
Hatlestad v. Derwinski, 3 Vet.App. 213 (1992).
The veteran's service-connected disabilities consists solely of his
anxiety reaction disorder rated at 10 percent disabling. A total
rating on the basis of individual unemployability necessarily
involves a review of the veteran's service-connected disabilities.
In this regard, the Board notes that it has done so above.
As noted above, the assignment of a total rating requires that
certain percentage requirements be met. In this case, given a
rating of 10 percent for a singular disability, it is clear that
the percentage requirements are not met. The Board notes, however,
that referral for extraschedular consideration is afforded to those
veterans who fail to meet the percentage requirements and who are
unemployable by reason of service-connected disabilities. 38 C.F.R.
3.321(b). The veteran has, in fact, argued that the provisions of
38 C.F.R. 4.16(b) as it relates to such a referral is for
application. The record fails to demonstrate, however, that the
veteran's singular service-connected disability precludes him from
engaging in substantially gainful employment.
As cited in the discussion above concerning the schedular
evaluation of the veteran's service-connected disability, it is
important to note that the veteran has multiple and very serious
nonservice-connected disorders that contribute to his occupational
and social impairment and his inability to perform occupational
tasks. Some of these have been variously diagnosed as intention
tremor, Parkinsonism, arteriosclerotic degenerative condition of
the basal ganglia, and Parkinson's disease. Significantly, the
veteran's tremors have been associated with these other disorders
and have not been associated with his service-connected anxiety
disorder. It is also an important distinction to note that
although the veteran has been unemployed for 10 years, it appears
more likely that his occupational and social impairment and/or
inability to perform occupational tasks is the result of his age
and the serious impact of his multiple nonservice-connected
disabilities, including his tremors, and not because of his
service-connected anxiety reaction disorder.
Review of the entire record, therefore, reveals that although the
veteran is very likely unemployable, the record fails to establish
that the veteran's service-connected disability alone precludes him
from substantially gainful employment. On the contrary, it appears
that disability plays only a minor role in his employment picture
and the limitation upon his functional capacity. The Board
stresses that, although limitation in certain activities were
recorded on examination in 1995 and 1997, the limitations were
attributable in large part to disorders that are not service-
connected, such as intentional tremor, essential hypertension,
arteriosclerotic heart disease, and Parkinson's disease, and
osteoarthritis.
As stated by the Court, the sole fact that a claimant is unemployed
or has difficulty obtaining employment is not enough. A high
rating in itself is a recognition that the impairment makes it
difficult to obtain and keep employment. The question is whether
the veteran is capable of performing the physical and mental acts
required by employment, not whether the veteran can find
employment. See Van Hoose, 4 Vet. App. at 363; 38 C.F.R. 4.16(a).
In determining whether an appellant is entitled to a total
disability rating based upon individual unemployability, neither an
appellant's non-service-connected disabilities nor advancing age
may be considered. Van Hoose, 4 Vet. App. at 363.
In summary, the record does not demonstrate that the veteran's
service-connected disability would render him unable to engage in
some form of substantially gainful employment. The record fails to
show that the veteran, in light of his individual circumstances,
and without regard to age, is unable to secure and follow a
substantially gainful occupation as a result of service-connected
disability. Referral of the veteran's claim to the appropriate
first-line officials for consideration of an extraschedular
evaluation pursuant to 38 C.F.R. 3.321(b)(1), therefore, is not
appropriate. See Bagwell v. Brown, No. 95-238, slip op. at 4 (U.S.
Vet.App. July 3, 1996).
ORDER
An evaluation in excess of 10 percent for an anxiety reaction
disorder is denied.
A total rating based on individual unemployability due to service-
connected disability is denied.
MICHAEL A. PAPPAS
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1998), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988).
The date which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by the
Board of Veterans' Appeals.